May 23, 2017

Colorado Rules of Criminal Procedure Amended by Rule Change 2017(02)

On Wednesday, March 8, 2017, the Colorado State Judicial Branch announced Rule Change 2017(02), affecting the Colorado Rules of Criminal Procedure. The rule change amends Crim. P. 49.5 by changing the website for the court’s electronic filing system. The Comment to Rule 49.5 was also changed, and a 2017 comment was added as follows:

 [4] Effective November 1, 2016, the name of the court authorized service provider changed from the “Integrated Colorado Courts E-Filing System” to “Colorado Courts E-Filing” (www.jbits.courts.state.co.us/efiling/).

Rule Change 2017(02) was adopted and effective March 2, 2017. The full text of the rule change is available here. For all the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: Defendant Entitled to At Least a Hearing on Ineffective Assistance Claims

The Colorado Court of Appeals issued its opinion in People v. Hunt on Thursday, June 16, 2016.

Postconviction Relief—Ineffective Assistance of Counsel—Transferred Intent—Complicity.

Defendant was charged with first degree “after deliberation” murder, first degree “extreme indifference” murder, conspiracy to commit murder, possession of a weapon by a previous offender, and three crimes of violence (sentencing enhancement) counts. Under a plea agreement, defendant pleaded guilty to an added count of second degree murder and to one of the original crime of violence counts in exchange for (1) the dismissal of the remaining charges and (2) a stipulated sentence of between 30 and 40 years’ imprisonment.

Defendant later wrote two letters to the district court asking to withdraw his guilty plea. He asserted that he was not guilty of murder because he had not intended for the shooter to kill the victim and his attorney had erroneously advised him that he could, if tried, be found guilty and sentenced to life imprisonment under a complicity theory. Plea counsel then filed a motion to withdraw from the case based on an alleged conflict of interest and asked the court to allow defendant to withdraw his guilty plea. Following a hearing, the court found no conflict of interest and directed counsel to file a Crim. P. 32(d) motion to withdraw guilty plea on behalf of defendant. Counsel filed the motion three days later. The court did not address the motion and sentenced defendant to 40 years’ imprisonment.

Defendant subsequently filed two pro se Crim. P. 35(c) motions for postconviction relief based on ineffective assistance of plea counsel, again alleging that he had been incorrectly advised that he could be found guilty of murder as a complicitor simply because he was present when a person he had not intended to be killed was killed. The court appointed new counsel who expounded on defendant’s claims, and the court, without a hearing, denied the motions for postconviction relief.

On appeal, defendant argued that he was entitled to a hearing on his ineffective assistance of counsel assertions, and the Court of Appeals agreed. An ineffective assistance of counsel claim requires a defendant to establish that counsel’s performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases and that the deficient performance prejudiced the defense. A hearing is required unless the record establishes that the allegations, if proven true, would fail to establish either of these conditions. Here, defendant argued that he was not aware that the shooter intended to kill someone other than a person whom defendant wanted to kill. If true, these facts would not support a conviction for first or second degree murder under a complicitor theory, and failure to advise defendant of this could have constituted deficient performance on the part of plea counsel. Because there was no hearing to determine what plea counsel advised defendant and what the professional norms were, or whether defendant would have pleaded guilty anyway, the case was remanded for an evidentiary hearing on this issue. Remand is also necessary for an evidentiary hearing on defendant’s claim that plea counsel was ineffective for failing to advise him about appealing the ruling denying his Crim. P. 35(c) motion to withdraw the guilty plea.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Appellate Rules and Colorado Rules of Criminal Procedure Amended by Colorado Supreme Court

On Tuesday, November 3, 2015, the Colorado Supreme Court issued Rule Change 2015(09) and Rule Change 2015(10). Rule Change 2015(09) amends Rules 36, 37, 38, and 39 of the Colorado Appellate Rules. Rule Change 2015(10) amends Rule 17 of the Colorado Rules of Criminal Procedure.

The changes to the Colorado Appellate Rules are extensive. Much of the text of Rule 36, “Entry and Service of Judgment,” was deleted, and the comment notes that the rule was amended for brevity and to conform to the current practice of the courts. The changes to Rule 37, “Interest on Judgments,” are relatively minor, changing syntax and clarifying instructions. Rule 38, “Sanctions,” was significantly amended, and a 2015 comment was added. The comment notes that prior subsections (b), (c), and (e) of the rule were deleted and the relevant portions thereof were added to subsection (a), and prior subsection (d) was renumbered. The comment further clarifies that the statement in former subsection (b) about the court dispensing with oral argument was deleted because it is always within the court’s discretion to dispense with oral argument. Rule 39, “Costs,” also underwent significant revisions and now contains a 2015 comment. The comment to Rule 39 notes that the rule was changed, in part, to be consistent with Federal Rule of Appellate Procedure 39, which governs costs. The comment further clarifies that the changes shift responsibility for taxing costs from the appellate courts to the trial courts, which reflects the current practice of the courts. The comment outlines specific numbering changes to Rule 39.

The changes to Crim. P. 17, “Subpoena,” are relatively minor, adding electronic signatures to acceptable methods of waiver of service.

For a redline of Rule Change 2015(09), click here. For a redline of Rule Change 2015(10), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Changes Announced to Colorado Rules of Civil Procedure and Colorado Rules of Criminal Procedure

Colorado Court SealOn Monday, June 1, 2015, the Colorado State Judicial Branch released Rule Change 2015(04) and Rule Change 2015(05). Rule Change 2015(04) amends Rule 32, “Sentence and Judgment,” of the Colorado Rules of Criminal Procedure. The changes are significant and amend many procedural aspects of sentencing. The changes were adopted and effective May 22, 2015.

Rule Change 2015(05) amends the Colorado Rules of Civil Procedure. The changes are extensive and mirror the changes to the Federal Rules of Civil Procedure. According to the new Comment to Rule 1, “The 2015 amendments are the next step in a wave of reform literally sweeping the nation. This reform movement aims to create a significant change in the existing culture of pretrial discovery with the goal of emphasizing and enforcing Rule 1’s mandate that discovery be administered to make litigation just, speedy, and inexpensive. One of the primary movers of this reform effort is a realization that the cost and delays of the existing litigation process is denying meaningful access to the judicial system for many people.” The rule change also added a new form, JDF 622, “Proposed Case Management Order.” The changes were adopted by the Colorado Supreme Court on May 28, 2015, and are effective July 1, 2015, for cases filed on or after July 1, 2015.

On Thursday, June 25, 2015, CLE will host a program to discuss the new rule changes and what they will mean for Colorado attorneys. Richard Holme, Hon. Thomas Kane, and Hon. Michael Berger will discuss the new rules and their significance. Don’t miss this important opportunity to learn about the requirements of the new Rules.

NEW Rules of Civil Procedure in Colorado: Effective July 1, 2015

To register for the live program, click here. To register for the webcast, click here. To register for the video replay on July 17, click here.

Can’t make the live program? Order the homestudy here — CDMP3Video OnDemand

Colorado Court of Appeals: Ineffective Assistance Claims Improperly Asserted in Crim. P. 33 Motion

The Colorado Court of Appeals issued its opinion in People v. Lopez on Thursday, April 23, 2015.

Assault—Menacing—Obstructing a Peace Officer—Jury Instruction—Attempt—Ineffective Assistance of Counsel—Crim.P. 33.

Defendant assaulted his wife and broke her clavicle. A uniformed officer found defendant outside the hospital. When the officer attempted to speak to him about his wife’s injuries, defendant became aggressive and threatening toward the officer. A jury convicted defendant of second-degree assault causing serious bodily injury, menacing by the use of a deadly weapon, and obstructing a peace officer.

On appeal, defendant contended that the evidence was insufficient to establish that he committed the crime of menacing against the police officer. Evidence showed that defendant made a threat and that he placed or attempted to place the first officer in fear of imminent serious bodily injury by telling her he had a knife and approaching her in an aggressive manner. This was sufficient to support a conviction for misdemeanor and felony menacing.

Defendant contended that the record did not contain sufficient evidence to support the conviction for obstructing a peace officer because the officer had not arrested nor intended to arrest defendant at the time. The obstructing statute is not limited to officers making arrests, and there was sufficient evidence that defendant’s conduct violated the obstructing statute even though the first officer did not arrest him.

Defendant also argued that the trial court erred when it instructed the jury on criminal attempt, even though the prosecution had not charged defendant with attempt. Because defendant was charged with menacing, and menacing includes the element of attempt, the court did not err in instructing the jury on the definition of attempt.

Defendant argued that the trial court erred when it denied his motion for a new trial because his trial counsel had been ineffective. Because defendant raised this as a Crim.P. 33 motion instead of a Crim.P. 35(c) motion, the trial court’s decision to deny defendant’s Crim.P. 33 motion without a hearing was reviewed for an abuse of discretion. The Court of Appeals found that the trial court’s rulings were not manifestly arbitrary, unreasonable, or unfair because defendant failed to prove prejudice based on any alleged errors. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Minor Change to Colo. R. Crim. P. 44 Announced

On Thursday, March 26, 2015, the Colorado Supreme Court announced Rule Change 2015(03), which amended Rule 44 of the Colorado Rules of Criminal Procedure. The change affects subsection (a) of the rule, and the only change was to update a cross-reference from C.R.C.P. 226 to C.R.C.P. 205.7. For a redline of the rule change, click here.

Colorado Court of Appeals: No Error in Denial of Crim. P. 35(c) Postconviction Relief Motion

The Colorado Court of Appeals issued its opinion in People v. Romero on Thursday, February 12, 2015.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Fifth Amendment—Sixth Amendment—Right to Counsel—Competency—Prosecutorial Misconduct.

Romero was convicted of first-degree murder for shooting A.S. He was sentenced to life in prison without the possibility of parole. He filed a motion for post-conviction relief pursuant to Crim.P. 35(c), which was denied without a hearing.

On appeal, Romero contended that attorney F.G. ineffectively assisted him during his police interview when he failed to advise Romero of the consequences of submitting to police interrogation and a polygraph test. Romero’s Fifth Amendment right to counsel had not attached because the police interview was not custodial. Romero’s Sixth Amendment right to counsel had also not attached because Romero had not yet been charged. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s pre-indictment representation failed.

Romero contended that F.G. ineffectively assisted him during trial because F.G. visited Romero in jail and improperly advised him. Because F.G. did not represent Romero during any critical stages of the case, did not help him prepare his defense, and did not otherwise appear on his behalf, the constitutional guarantee of effective assistance did not apply. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s post-indictment advice also failed.

Romero further contended that D.J. and R.C. ineffectively assisted him when they (1) allowed him to be tried while incompetent, and (2) failed to object contemporaneously to alleged prosecutorial misconduct at trial. The record reflects that defense counsel raised the issue of Romero’s competency numerous times, and the court made adequate rulings on the record each time. In regard to Romero’s claims of prosecutorial misconduct, even assuming that the prosecutor’s statements were improper and that counsel’s failure to object constituted deficient performance, Romero failed to allege facts demonstrating prejudice. Therefore, the post-conviction court did not err in dismissing these claims without an evidentiary hearing. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Electronic Filing and Service Rule of Criminal Procedure Updated

On December 29, 2014, the Colorado Supreme Court approved and adopted Rule Change 2014(17), amending the Colorado Rules of Criminal Procedure. Rule Change 2014(17) amended C.R. Crim. P. 49.5, “Electronic Filing and Service System.” The changes were minor, including updating the web address for the e-filing system, changing capitalization and punctuation, and moving the rule about nunc pro tunc orders. The rule change also added a Committee Comment. A redline of the changes is available here.

For all of State Judicial’s adopted and proposed rule changes, click here.

New Rule of Criminal Procedure Added Regarding e-Filing

On Wednesday, September 24, 2014, the Colorado Supreme Court issued Rule Change 2014(12), adding new Rule 49.5, “Electronic Filing and Service System,” to the Colorado Rules of Criminal Procedure. The new rule is effective immediately.

The rule provides that e-filing and e-service may be used for criminal cases in Colorado as determined by the Colorado Supreme Court through Chief Justice Directives. The rule was added in anticipation of the criminal e-filing pilot program in Pueblo, scheduled to begin in October.

For the complete text of the new rule, click here. For all the Colorado Supreme Court’s rule changes, click here.

First Rule Changes of 2014 Amend Colorado Rules of Criminal Procedure and Rules Governing Admission to the Bar

The Colorado State Judicial Branch released the first rule changes of 2014, amending Crim. P. 37, “Appeals from County Court,” and Rule 227, “Registration Fee,” of Chapter 18 of the Colorado Rules of Civil Procedure, “Rules Governing Admission to the Bar.”

Rule Change 2014(02) amends the Rules Governing Admission to the Bar. The change to Rule 227 specifies that $25 of attorney registration fees are to go to the Attorneys’ Fund for Client Protection and the remainder will go to defray the costs of the Office of Attorney Regulation Counsel. Previously, $40 was allocated to the Attorneys’ Fund for Client Protection. This rule was adopted and effective January 16, 2014.

Rule Change 2014(01) makes several changes to subsection (c) of Rule 37 of the Colorado Rules of Criminal Procedure:

(c) Contents of Record on Appeal. Upon the filing of a notice of appeal and upon the posting of such ANY advance costs by the appellant, as may be ARE required for the preparation of a record, unless the appellant is granted leave to proceed as an indigent, the clerk of the county court shall prepare and issue as soon as may be possible a record of the proceedings in the county court, including the summons and complaint or warrant, the separate complaint if any has been issued, and the judgment. The record shall also include a transcription or a joint stipulation of such part of the actual evidence and other proceedings as the parties may designate. If the proceedings have been electronically recorded ELECTRONICALLY, the transcription of designated evidence and proceedings shall be prepared in the office of the clerk of the court, either by him OR HER or under his OR HER supervision, within 42 days after judgment THE FILING OF THE NQTICE OF APPEAL or within such additional time as may be granted by the county court. The clerk shall notify in writing the opposing parties of the completion of the record, and such parties shall have 14 days within which to file objections. If none are received, the record shall be certified forthwith by the judge clerk. If objections are made, the parties shall be called for hearing and the objections settled by the county judge and the record then certified.

For a list of the supreme court’s rule changes, click here.

Colorado Court of Appeals: Failure to Provide Evidence Tending to Negate Defendant’s Guilt Violated Crim. P. 16 Disclosure Requirement

The Colorado Court of Appeals issued its opinion in People v. Bueno on Thursday, November 21, 2013.

Newly Discovered Evidence—New Trial—Crim.P. 16(I)(a)(2)—Mandatory Disclosures—Crim.P. 33(c)—Time Barred—Sentencing.

The People appealed the trial court’s order granting defendant a new trial based on newly discovered evidence. The order was affirmed.

Defendant was charged with, tried, and convicted of first-degree murder for the death of fellow inmate Jeffrey Heird at the Limon Correctional Facility (LCF). Approximately fifteen months after defendant’s trial but before sentencing, the prosecution provided discovery of a letter (ABN letter) and report (Smelser report) to the defense, both of which were exculpatory to defendant. The ABN letter was found by Nurse Linda Deatrich in the medical “kite” box at LCF approximately thirty-five minutes after Heird’s body was discovered in his cell. Nurse Deatrich filed an employee incident report about the discovery of the ABN letter (Deatrich report). It was undisputed that copies of the ABN letter and the Deatrich report were contained in the working file of Deputy District Attorney Robert Watson, the original prosecutor working on defendant’s case. Watson had this information sometime in 2004, but did not provide it to defendant until July 2009. Defendant filed a motion for a new trial based on Crim.P. 33(c), as well as the prosecution’s violation of Crim.P. 16 and Brady v. Maryland, 373 U.S. 83 (1963). The trial court granted the motion.

On appeal, the People contended that the trial court erred in granting defendant a new trial. The prosecution had copies of the ABN letter and the Deatrich report in Watson’s working file, and the information tended to negate defendant’s guilt; therefore, it was incumbent on the prosecution to provide this information to defendant. Failure to do so violated the mandatory disclosure requirement of Crim.P. 16(I)(a)(2) and Brady. Further, because defendant was prejudiced by the non-disclosure—the evidence would likely bring about an acquittal—the trial court did not abuse its discretion in granting defendant a new trial pursuant to Crim.P. 33(c).

The People also contended that the trial court abused its discretion by failing to address their argument that defendant’s motion for a new trial was time-barred. The term “entry of judgment” in Crim.P. 33(c) means more than a “verdict or finding of guilt” and must include sentencing of the defendant. Accordingly, as a matter of law, defendant’s Crim.P. 33(c) motion was timely because he had not been sentenced at the time he filed his motion.

Summary and full case available here.

Rule Change 2013(16) Amends Colorado Rules of Criminal Procedure

On Monday, November 4, 2013, the Colorado Supreme Court released Rule Change 2013(16). This rule change amends Rule 5 of the Colorado Rules of Criminal Procedure, “Preliminary Proceedings.” The rule change is effective January 1, 2014.

Rule Change 2013(16) amends Crim. P. 5 as follows:

(2) Appearance Before the Court. At the first appearance in the county court the defendant shall be advised in accordance with the provisions set forth in subparagraphs (a) (2) (I) through (VII) of this Rule, except that the defendant shall be advised that an application for the appointment of counsel shall not be made until after the prosecuting attorney has spoken with the defendant as provided in C.R.S. 16-7-301 (4) (a).

State Judicial also issued a corrective order to Rule Change 2013(14), regarding new Rule 37, “Discovery,” of the Colorado Rules of Probate Procedure. The corrective order amends a citation in subparagraph (b) and is issued nunc pro tunc for the original effective date, October 10, 2013.

For the complete text of Rule Change 2013(16), click here. For all of State Judicial’s rule changes, click here.